05 September 2012 6:32 PM

When it comes to our rights, the real Supreme Court is in Strasbourg

IT was the Brokeback Mountain
incident that did it for me.

Even if you have
been following the long-running Christians vs The Rest legal series, you may be
puzzled over how the Hollywood film about two gay cowboys gets involved. Don’t
worry, the dispute went right through the British court system all the way up
to the grandeur of the Appeal Court and the wisdom of Lord Justice Laws without
anybody noticing it much.

It all came out,
though, in front of the more-or-less distinguished judges of the European Court
of Human Rights.

What happened
was this. Gary McFarlane, a counsellor with Relate, went on a course on
psycho-sexual therapy with the aim of furthering his career. During the course,
he made a mistake. There was a screening of Brokeback Mountain and he didn’t
go.

Mr McFarlane
says he was tired. His colleagues, however, were suspicious. They knew Mr
McFarlane was a Christian. They began to think he might be one of those
homophobes.

The upshot was a
series of interviews with bosses – I don’t know if they were done under hot
white lights but that would have been in keeping with the general atmosphere –
during which Mr McFarlane was questioned about his attitudes. They ended up
with him getting the sack because of his uncertainty about whether he would, if
asked, give sex advice to gay couples.

There is a
lesson for us all here. Personally, I’m getting the DVD out today, and I’m
making sure the CCTV cameras catch me doing it, and I’m keeping the receipt.

I wonder
however, how many supporters of the gay lobby, those with a deep horror of the
McCarthyite purges of Hollywood in the 1950s, or a dim recognition that
Stalin’s enforcement of CPSU discipline in the 1930s might have been somehow
morally flawed, are worried about the way Mr McFarlane was treated.

The British
courts, I think, got it wrong. Here is Lord Justice Laws fulminating against
the repressive evils of religious dictatorship while throwing Mr McFarlane’s
case out in the Appeal Court in 2010.

'The precepts of any one religion - any belief system
- cannot, by force of their religious origins, sound any louder in the general
law than the precepts of any other. If they did, those out in the cold would be
less than citizens, and our constitution would be on the way to a theocracy,
which is of necessity autocratic.'

Autocratic? Poor Gary McFarlane? And he is, by the
way, because these days he finds it difficult to get another job, what with the
homophobia.

Far from treating anyone as less than a citizen, Mr
McFarlane never actually refused his counselling services to anybody. He had
worked with gay couples, without complaint.

There is a genuine political battle going on here,
and the courts are in the middle of it. Parliament has voted repeatedly for
legislation that outlaws discrimination against same-sex couples, and judges
properly take note of that. But not everybody agrees, and that leaves minority
individuals with moral misgivings about gay rights, what was Lord Justice Laws’
phrase? Out in the cold.

Yet we are supposed to respect minority
beliefs, and our constitution still reserves a special place for the Church of
England. Lord Justice Laws observed that 'the liturgy and practice of the
established Church are to some extent prescribed by law.'

Well, I ain’t no lawyer, but that’s wrong. There’s no
some extent about it. They are. Full stop.

If a milk-and-water organisation like Relate is going
to sack a previously valued employee because of doubts over his ideological
position on gay rights, what happens when you come to a hard case like
Islington council?

The judges of the European Court of Human Rights, as
mentioned above, are now deliberating that question alongside the matter of Mr
McFarlane and Brokeback Mountain, and that is a real failure for British
justice.

We have been hearing from lawyers for a decade about
the benefits of the Human Rights Act, which wrote European human rights rules
into British law. Under its terms, British judges would conduct a balancing
act, weighing one set of rights against another in each case, and deciding
where the interests of justice weighed heaviest.

They have come nowhere near to doing so in the case
of Mr McFarlane and three other Christian cases thrown into Strasbourg this
week: sacked Islington registrar Lilian Ladele, and Nadia Eweida and Shirley
Chaplin, the women who wanted to wear crosses with their work uniforms.

The Human Rights Act has given judges enormous new
powers to make the law, which they have not hesitated to use, and yet in these
key cases their rulings have fallen short of settling a British political and
constitutional argument of the first importance.

So once again we go to the European judges, who
assume their role as Britain’s real supreme court. That building opposite the
Palace of Westminster fitted out with expensive judges and even more expensive
carpets designed by Peter Blake? That’s not a Supreme Court. It’s just for
show. It’s a costly annex to the Court of Appeal with no genuine purpose. It
can’t decide a thing. The final word is spoken in Strasbourg.

Of course, the European human rights court
shouldn’t be in Strasbourg at all. There are some decent restaurants, but the
wine is a bit downmarket for the delicate palates of all those lawyers. Best to
shift the court a bit southwards to a real trencherman’s city where there is
plenty of fine burgundy. Next time, throw the Christians to Lyons.

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